The answer is “very.” To borrow a line from Steve Austin — no, not the Six Million Dollar Man; rather, the greatest Steve Austin that ever lived, Stone Cold Steve Austin — Judge Gorsuch stomped a mud hole and walked it dry.

Sure, Judge Gorsuch did acknowledge that a “brief absence” from work could allow the employee to perform the essential functions of the job. “After all,” he noted. “[F]ew jobs require an employee to be on watch 24 hours a day, 7 days a week without the occasional sick day.”

But, longer than that?!? Judge Gorsuch lamented that “it’s difficult to conceive how an employee’s absence for six months — an absence in which she could not work from home, part-time, or in any way in any place — could be consistent with discharging the essential functions of most any job in the national economy today.” (hyperlink added)

Judge Gorsuch opined that “an inflexible leave policy can serve to protect rather than threaten the rights of the disabled — by ensuring disabled employees’ leave requests aren’t secretly singled out for discriminatory treatment, as can happen in a leave system with fewer rules, more discretion, and less transparency.”

(Let’s face it. While, I attended law school at “the Harvard of the Mid-Atlantic” a/k/a The George Washington University Law School, Judge Gorsuch attended the actual Harvard Law School. So, while I do have a blog, I should probably be carrying his bag and picking up his judicial robe from the dry cleaners. Who ya gonna trust?)

[T]he EEOC manual commands our deference only to the extent its reasoning actually proves persuasive. And the sentence Ms. Hwang cites doesn’t seek to persuade us of much. It indicates that an employer “must” modify a leave policy if the employee “needs” a modification to ensure a “reasonable accommodation”— that is, unless two listed conditions are met. But none of this answers the antecedent question we face in this case: When is a modification to an inflexible leave policy legally necessary to provide a reasonable accommodation?

In sum, I pity the fool with the first ADA case by before Justice Gorsuch.

CONTRIBUTOR:

Eric B. Meyer

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? If you want a nerdy employment-lawyer brain to help you solve HR-compliance issues proactively before the action sequence, as a Principal Partner of a national law firm, FisherBroyles, LLP, I’m here to help. I'm not only an EEOC-approved trainer, I offer day-to-day employment counseling, workplace audits and investigations, and other prophylactic measures to keep your workplace working while you focus on running your business. And for those employers in the midst of conflict, I bring all of my know-how to bear as your zealous advocate. I’m a trial-tested, experienced litigator that has represented companies of all sizes in a veritable alphabet soup of employment law claims, such as the ADA, ADEA, CEPA, FMLA, FLSA, NJLAD, PHRA, Title VII, and USERRA. I also help clients litigate disputes involving restrictive covenants such as non-competition and non-solicitation agreements, as well as conflicts over use of trade secrets and other confidential information. For more about me, my practice, and my firm, click on my full bio.